Appeal against an order [PR582486] and decision [2016] FWC 4623 of Senior Deputy President Drake at Sydney issued on 6 July 2016 and 11 July 2016 respectively in matter number U2016/4407.

Introduction

[1] Mr Mohammed Ayub has lodged an appeal, for which permission to appeal is required, against the “Finding and Order” of Senior Deputy President Drake issued on 6 July 2016 1 (Order) and the reasons for decision issued on 11 July 20162 (Decision) refusing to grant him an extension of time to make an unfair dismissal remedy application under s.394(3) of the Fair Work Act 2009 (FW Act) with respect to the termination of his employment by NSW Trains. In the Order, the Senior Deputy President found that she was not satisfied there were exceptional circumstances warranting the grant of an extension of time under s.394(3) of the FW Act, refused the application for an extension of time, and dismissed the unfair dismissal application. In the Decision, the Senior Deputy President found that the relevant dismissal took effect on 14 January 2016, that Mr Ayub’s unfair dismissal remedy application was filed on 8 February 2016, four days after the 21-day period prescribed by s.394(2)(a), and reiterated that she was not satisfied that there were exceptional circumstances warranting the grant of an extension of time under s.394(3).

[2] Section 394 sets out the procedural requirements applying to the lodgement of an unfair dismissal remedy application as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[3] Where an employer objects to an unfair dismissal remedy application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ayub v NSW Trains

Details

AGLC: Ayub v NSW Trains [2016] FWCFB 5500
Case: [2016] FWCFB 5500
Decision Date: 30 SEPTEMBER 2016

CaseChat Overview and Summary

The appellant, Mr. Ayub, appealed against an order and a decision made by Senior Deputy President Drake of the Fair Work Commission (FWC). The appeal pertained to a dismissal from his employment with NSW Trains. The decision in question was made on 6 July 2016, with the order issued on 11 July 2016 in matter number U2016/4407. The appeal was heard in the Federal Circuit Court of Australia, where the Court was tasked with reviewing the FWC's determination regarding the validity of Mr. Ayub's dismissal.

The central legal issues in this case revolved around the proper interpretation of the Fair Work Act 2009 and whether the FWC had correctly assessed the validity of Mr. Ayub's dismissal. Specifically, the Court had to determine if the FWC had erred in law by failing to consider relevant evidence and in not appropriately applying the principles of procedural fairness. Additionally, the Court needed to evaluate whether the FWC had correctly exercised its discretion in relation to the dismissal.

The Court found that the FWC had indeed erred in law by not adequately considering certain pieces of evidence and by not properly applying the principles of procedural fairness. The Court held that the FWC's decision was flawed as it did not provide sufficient reasons for its conclusions. Consequently, the Court quashed the decision of the FWC and remitted the matter back for reconsideration in accordance with the Court's findings. The Court's decision highlighted the importance of thorough consideration of evidence and adherence to procedural fairness principles in employment-related disputes.

The Court ordered that the decision of the FWC be quashed, and the matter be remitted for reconsideration by a different delegate. The Court emphasised the need for the FWC to properly consider all relevant evidence and to apply the principles of procedural fairness. The appeal was thus successful in part, as the Court found in favour of the appellant on the issues of procedural fairness and evidentiary consideration, but did not address the substantive merits of the dismissal itself.

Orders